Bartlett v. Mayo

Shepley, C. J., orally. — The paper A, was in the handwriting of the intestate. For that reason, the Judge had no authority to exclude it. He could not foresee what connection it might have with other facts which the plaintiff might prove. The principal reliance of the defendants however,' is, that there was error in the instruction to the jury, that if a note was given, and was an unnegotiable one, it was not necessary for the plaintiff to produce it at the trial or to account for its loss. Í But there is no presumption in law, that such a note is payment of a pre-existing debt. A plaintiff may always recover upon proving his claim, unless some defence be shown. In this case the defendant exhibited the plaintiff’s receipt. But it is well settled, that a receipt is explainable and controllable by parole testimony. Such testimony is for the consideration of the jury. If the supposed note should hereafter be prosecuted, a recovery upon it would be barred by the recovery in this suit, accompanied by payment of the judgment. The production of the note was therefore unnecessary. Exceptions overruled.